Fundamental consumer rights under the Consumer Protection Act 68 of 2008: A critical overview and analysis

Abstract:

South Africa was in need of a comprehensive framework of legislation, policies and
government authorities to regulate consumer-supplier interaction. The Consumer
Protection Act 68 of 2008, which was signed by the President of the Republic of
South Africa on 29 April 2009 and published in the Government Gazette on 29 April
2009, now provides an extensive framework for consumer protection and aims to
develop, enhance and protect the rights of consumers and to eliminate unethical
suppliers and improper business practices. Certain areas of the common law
regarding consumer rights have been codified by the Act and certain unfair business
practices that were previously unregulated are now governed by the Act. The Act
has a wide field of application. It applies to every transaction occurring within South
Africa for the supply of goods or services or the promotion of goods or services and
the goods or services themselves, unless the transaction is exempted from the
application of the Act. The Act also specifically regulates aspects of franchise
agreements. In terms of the Act, consumers obtain several new rights and some
existing rights are broadened and reinforced. These rights are: the right to equality in
the consumer market; privacy; choice; disclosure and information; fair and
responsible marketing; fair and honest dealing; fair, just and reasonable terms and
conditions; and fair value, good quality and safety. The last right in terms of the Act
deals with a supplier's accountability to consumers. The authors critically analyse
and discuss these rights. It is clear that the Act is written in favour of the consumer.Various provisions of the Act make inroads into the common-law position to
strengthen the position of the consumer vis-à-vis the supplier and suppliers are
undoubtedly facing an onerous task to prepare to comply, and eventually attempt to
comply, with the Act. Although the Act has its own interpretation clause, which
provides that it must be interpreted in a manner that gives effect to the purposes of
the Act, the Act poses many uncertainties and interpretational and practical
challenges. Many questions are therefore raised, some of which remain
unanswered. These questions illustrate some of the uncertainties concerning the
scope and possible interpretation of the fundamental consumer rights.